29 April 2019

Where do elections come from? #nlpoli

From fixed election dates to the number of candidates that run in an election,  what Newfoundlanders and Labradorians believe about one of the basic institutions of their democracy is as much myth and rumour as reality. 
Here are some facts to help you navigate the world of post-Confederation elections in Newfoundland and Labrador.
The Crown Prerogative, exercised with the advice of the Premier

Newfoundland and Labrador does not have a fixed election date.

The changes to the House of Assembly Act in 2004 that supposedly set the election date for a day in October every four years starts with a simple clause that supersedes the fixed date bit:

3. (1) Notwithstanding another provision of this section, the Lieutenant-Governor may, by proclamation in Her Majesty's name, prorogue or dissolve the House of Assembly when the Lieutenant-Governor sees fit.
To understand how that works, we need to recall some basic constitutional points first.  Except in some very rare – but important – instances, the Lieutenant-Governor may only act with the advice of the Executive Council.

Of all the things the Council may advise the LG about, the Premier alone actually gets to give the advice on a very limited number of subjects.  Since 2003, Newfoundland and Labrador has been doing something else - probably unconstitutional - but that is a very big subject for another conversation.

One of the areas the Premier alone may give advice about is when to dissolve the legislature and call an election. So section 3 (1) preserves that power, unaltered. The Premier can advise on the call of an election at any time.

The reason we had three elections at times forecast well advance is because – basically – that’s the way the Premier in power at the time wanted it.  Danny Williams went with the date the changes he introduced in 2004 forecast and Kathy Dunderdale went at the same time.

The 2015 Mess

Faced with a potential conflict with the federal election in 2015,  Paul Davis’s government introduced changes to the House of Assembly Act that did three things.  First, it copied that first clause word-for-word as well as the next clause that referred to a date in October 2007 and every four years afterward. Second, it set the next election for November 2015.

Third, it added a really cumbersome pair of clauses that supposedly set the date for times when the provincial election collided with a federal election or other event.  It’s worth looking at the exact wording:

Notwithstanding subsection (2), if, on April 1 in the year that a general election is to be held under that subsection, the Premier is of the opinion that the day that would be an ordinary polling day under that subsection is not suitable for that purpose because it overlaps with a federal election, the Premier shall choose an alternative day in accordance with subsection (5) and shall provide advice to the Lieutenant-Governor that a general election be held on that alternative day.
Subsection (2) is the October date.  Look at the next few words:  “if, on April 1 in the year that a general election is to be held…[in October],  the Premier is of the opinion…” that there is some issue, the Premier must pick another day.  That other day is set in subsection 5 as the fourth Thursday in November.

There are a few things about this paragraph but let’s just pull out that very first bit.  It doesn’t say the Premier must make a change on April 1, as some people claimed this year.  It doesn’t say the Premier has until April 1 to make a change.  It says what the Premier must do on a specific day in the year.  Otherwise, the ability of the Premier to advise the LG on an election date at any time operates.

Harmful Charade

And strictly speaking, since the first clause of the section preserves unaltered the power of the LG to call an election at any time on the Premier’s advice, the whole thing is a giant charade anyway.  It’s just a really harmful charade because all sorts of well-meaning people believe all sorts of stuff that isn’t true about one of the most important rights citizens have:  when they get to elect representatives to the legislature. 

The confusion is really obvious if you look at the completely unnecessary changes made in 2015 and the awkward wording of the clauses that set the rules – supposedly - for elections after 2015 if there was a conflict with a federal election.  All any premier has to do is announce the date on which he or she wants to have the next election is to say when the day will be. 

Legally, there’s nothing to prevent that and as long as the premier delivers on the commitment, there is no political problem.  Paul Davis could have announced his choice for a date whenever he made it, no changes to the law needed, and certainly none as poorly worded as the ones he introduced.

After all, what happens if there is no problem on April 1 date and one occurs only later on in the year?  What happens if the problem is nakedly obvious the year before the April 1 in which there would be a problem? Does the Premier wait until April 1 or does the Premier make a decision and announce it? 

The answer is: it doesn’t matter because that first clause preserves the power of the LG and the Premier’s ability to give advice about the next election.  But politically, it could cause all sorts of problems and in the general chatter around the province all sorts of people will give it whatever interpretation they want. 

That is what has been happening this year.  And it is all the result of unnecessary and really poorly executed changes to legislation in 2004.  Things were made worse in 2015 by people who – on the face of it – had no idea what the hell they were doing and what the implications would be.  Those people include the folks who thought up the changes, the folks who wrote the words, and the folks who voted for the changes in the House of Assembly in early 2015 after debate that  - for the government - focused mostly on the number of seats in the House, not on the fixed election date.

They thought, as one of them said, fixed election dates would force “government to focus on governing the Province and not positioning itself for an election, or continuously thinking about how it may be opportunistic and call an election at a time when it suits their circumstance best.” 

“As a government,  our responsibility is to provide good, sound governance today, create legislation that reflects a progressive government, reflects the protection of the people of this Province.” 

Only five members of the House of Assembly voted against the 2015 amendments bill but they weren’t upset about fixed election dates.  All of them had problems with the revised seat boundaries.

The irony of their claim about the virtue of elections  - or the hypocrisy of their statements - is that the government that introduced the concept of fixed dates spent enormous amounts of public money manipulating public opinion complete with announcements like Hebron timed to  position itself for an election.

When do elections happen?

There have been 21 elections since 1949, including the one this year.  Four of them have occurred since 2004, in the period when elections were supposedly to take on a date determined well before it occurred.
Click to enlarge

More elections have taken place in September, October, and November than in the other months. 

But that result is skewed by the so-called fixed election date provision of the 2004 House of Assembly Act amendments. It set the date in October simply because the 2003 election had taken place in October.

If you just look at the elections before 2004, the largest number of elections are clustered pretty much equally between Spring and Fall. There were six in April and May and seven spread over September, October, and November.

How many candidates have run each time?

The chart shows the number of candidates in each election by affiliation recorded at the time by the Chief Electoral Officer.
Click to enlarge
The black line shows the total number of seats available in each election.  Until 1975, there were more seats than districts as some districts returned more than one member to the House of Assembly.  In some years the major parties ran candidates in each district but sometimes fell short of the total number of seats.

Since 1949, both the Liberals and Conservatives have fielded candidates equal to the number of districts on all but two occasions, both of which occurred within the past decade. Not all the candidates nominated by these parties have been competitive in the local district.

The New Democratic Party has nominated a full slate of candidates on only three occasions out of 21 since 1949.  In 1979, the party was one candidate short of a full slate.  As with the Liberals and Conservatives, the New Democrats have not fielded slates that were competitive in every district.

The 2019 NDP slate – 14 candidates – is the lowest number since 1996 when the party nominated 20 candidates in a 52-seat election. It is slightly lower than the number of candidates nominated in 1959 (18), 1971 (19), and 1975 (17).

For those who believe the current small NDP slate is a function of an early election call, note that prior to 2004 the party was able to nominate more than twice as many candidates as the current slate in the elections between 1979 and 1999 apart from 1996. On some of those occasions, the party nominated full slates or near full slates despite having less warning of an election.